Sharif Pharmacy Inc. v. Prime Therapeutics LLC ( 2020 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 18-2725
SHARIF PHARMACY, INC.,
Plaintiff-Appellant,
v.
PRIME THERAPEUTICS, LLC,
Defendant-Appellee.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:17-cv-03464 — Jorge L. Alonso, Judge.
____________________
No. 18-3003
HELEN J. SCALE, et al.,
Plaintiffs-Appellants,
v.
PRIME THERAPEUTICS, LLC, et al.,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:17-cv-06837 — Robert W. Gettleman, Judge.
____________________
2 Nos. 18-2725 & 18-3003
SUBMITTED OCTOBER 7, 2019 — DECIDED FEBRUARY 24, 2020*
____________________
Before KANNE, HAMILTON, and BARRETT, Circuit Judges.
HAMILTON, Circuit Judge. The issue in these consolidated
appeals is whether plaintiffs in two similar cases have stated
viable claims under Sections 1 or 2 of the Sherman Act, 15
U.S.C. §§ 1 and 2. They have not. We affirm the judgments of
both district courts dismissing the cases on the plaintiffs’
pleadings, though in one case with slight modifications.
I. The Prime Network and the Plaintiffs
Defendant Prime Therapeutics LLC is a pharmacy benefits
manager. Plaintiffs Sharif Pharmacy, Inc. and J&S Commu-
nity Pharmacy, Inc. were both members of the Prime phar-
macy network. Under Medicare, Medicaid, and private health
insurance plans, many patients had significant financial in-
centives to buy their prescription drugs from pharmacies
within the network. Prime terminated both Sharif and J&S
from the network after audits uncovered, in Prime’s view, ir-
regularities in invoicing for prescription drugs. Prime is
owned in part by the insurer Blue Cross Blue Shield, and
plaintiffs suggest that membership in the network is required
in order for pharmacies in certain states to accept Blue Cross
*These cases were scheduled for oral argument on September 18,
2019. On September 12, 2019, new counsel for plaintiffs in both cases
moved to vacate oral argument and to have the cases submitted on the
briefs. Two defendants opposed the motion; two others took no position.
The panel vacated the oral argument and has concluded that the briefs
presented the cases adequately under these circumstances. See Fed. R.
App. P. 34(a)(2)(C).
Nos. 18-2725 & 18-3003 3
Blue Shield, Medicare, and Medicaid prescription drug insur-
ance plans. We assume, therefore, that termination from the
Prime network hurt Sharif’s and J&S’s businesses.1
Sharif and J&S filed these suits alleging that their termina-
tions from the Prime network violated the federal Sherman
Act. Three customers joined the J&S action as plaintiffs who
had to switch to different, less convenient pharmacies, at least
for a time. In both cases, the plaintiffs alleged that the audits
were pretextual and that Prime really terminated both phar-
macies’ participation in its network in an attempt to get rid of
competition with Walgreens, with whom it had entered a joint
venture in August 2016. Prime sent letters to both pharmacies’
customers saying that Sharif and J&S would no longer accept
their insurance and recommending that customers have their
prescriptions filled at a nearby Walgreens. Prime also retained
funds from both pharmacies as a result of the audits.
II. The J&S Suit
The two cases took different paths through the district
court and on appeal, presenting different issues. We begin
with the J&S suit, which has been affected by events while the
appeal has been pending. First, J&S itself obtained reinstate-
ment in the Prime network. J&S then moved to dismiss its ap-
peal voluntarily under Federal Rule of Appellate Procedure
42(b). We granted that motion, so J&S itself is no longer as-
serting any claims in the lawsuit. The reinstatement has also
rendered moot the customer-plaintiffs’ request for injunctive
relief restoring J&S to the Prime network. See, e.g., E.E.O.C. v.
1 For example, J&S alleged that more than 80 percent of its prescrip-
tion-drug customers are insured by Medicare, Medicaid, or Blue Cross
Blue Shield.
4 Nos. 18-2725 & 18-3003
Flambeau, Inc., 846 F.3d 941, 949–50 (7th Cir. 2017). We may
not pass on the merits of “moot questions or abstract propo-
sitions.” Dorel Juvenile Group, Inc. v. DiMartinis, 495 F.3d 500,
503 (7th Cir. 2007), citing Calderon v. Moore, 518 U.S. 149, 150
(1996).
That leaves only the customers’ claims for damages in the
J&S lawsuit. Those claims are not moot, but they cannot be
remedied directly in federal antitrust litigation. It has long
been recognized that the primary purpose of the federal anti-
trust laws is to protect the welfare of customers. E.g., NCAA
v. Board of Regents, 468 U.S. 85, 107 (1984), citing Reiter v. Son-
otone Corp., 442 U.S. 330, 343 (1979), quoting in turn Robert H.
Bork, The Antitrust Paradox: A Policy at War With Itself 66 (1978);
Fishman v. Estate of Wirtz, 807 F.2d 520, 535–36 (7th Cir. 1986);
id. at 585 (Easterbrook, J., dissenting). Perhaps ironically,
however, it is well established under federal antitrust law’s
Illinois Brick doctrine that customers of parties more directly
injured by an alleged antitrust violation do not have standing
to assert their own claims for damages. See Apple Inc. v. Pep-
per, 139 S. Ct. 1514, 1520–21 (2019) (applying Illinois Brick rules
to section 2 claims for monopolization); Illinois Brick Co. v. Il-
linois, 431 U.S. 720 (1977); see also Loeb Industries, Inc. v. Sumi-
tomo Corp., 306 F.3d 469, 481–82 (7th Cir. 2002) (explaining Il-
linois Brick and its limits).
The Court explained in Illinois Brick that antitrust defend-
ants are not permitted to argue that their direct victims were
not injured because they were able to pass along price in-
creases to their customers. 431 U.S. at 724–26, discussing Han-
over Shoe, Inc. v. United Shoe Machinery Corp., 392 U.S. 481
(1968). Illinois Brick extended the same principle to bar claims
by indirect purchasers (such as customers) even if they were
Nos. 18-2725 & 18-3003 5
the ultimate victims of the violations. Because J&S Pharmacy
would have been most directly affected by any alleged anti-
trust violation, its own customers may not bring their own
claims for damages under the Sherman Act.
The customer plaintiffs alleged that they depended on J&S
Community Pharmacy because it was the only pharmacy
within walking distance that had accepted their insurance.
During the time when J&S was excluded from the Prime phar-
macy network, the customers were injured because they
could no longer use it to fill their prescriptions and were “too
poor or physically or mentally weak to regularly travel to a
distant pharmacy for their medicine,” “particularly during in-
clement weather.”
We take these plaintiffs at their word, of course. We do not
doubt that the exclusion of their familiar and most convenient
pharmacy from their insurance coverage caused significant
inconvenience and even hardship to them. Such harms, how-
ever, have not been treated as injury to “business or property”
as required to recover damages under the Sherman Act, 15
U.S.C. § 15(a). Even if we assumed for the sake of argument
that the exclusion of J&S Pharmacy from the Prime network
might have violated the Sherman Act (though we reject Sha-
rif’s similar claims on the merits, below), its customers would
not be entitled to sue for damages under that Act.
Courts and commentators have long been concerned with
calibrating antitrust standing doctrine in order both to cap-
ture “the full cost of an antitrust violation … by looking to the
injuries to all victims,” and to ensure that “the defendant
should not be made to pay twice for the very same injury.”
Phillip E. Areeda & Herbert Hovenkamp, Antitrust Law: An
Analysis of Antitrust Principles and Their Application ¶ 339a (4th
6 Nos. 18-2725 & 18-3003
ed. 2019). Here, the relief sought by the customer-plaintiffs
would duplicate any relief that J&S could have sought on its
own behalf. Their claims are barred because they would “sub-
stantially increase[] the possibility of inconsistent adjudica-
tions [ ]and therefore of unwarranted multiple liability for the
defendant[.]” Illinois Brick, 431 U.S. at 730.2
III. The Sharif Pharmacy Suit
Although we affirm the dismissal of the J&S suit for rea-
sons unrelated to the merit or lack of merit of the allegations
of Sherman Act violations, the Sharif Pharmacy appeal pre-
sents the merits squarely. Sharif alleges in essence that Prime
Therapeutics and Walgreens have created a joint venture that
encourages patients insured through Prime to buy their pre-
scription drugs at Walgreens and not at other competing retail
pharmacies like Sharif. The allegations fail to state a viable
claim under either Section 1 or Section 2 of the Sherman Act,
so we affirm.
In antitrust parlance, Sharif alleges a variant on a claim for
exclusive dealing and/or a refusal to deal. Sharif alleges in ef-
fect that Prime prefers to deal with Walgreens rather than Sha-
rif. Sharif has not alleged a horizontal agreement (i.e., among
competitors) to fix prices or divide markets, so the case is not
subject to the rule of per se illegality under Section 1 of the
Sherman Act. Under the rule of reason for Section 1 cases, ex-
clusive dealing or refusals to deal could violate Section 1 only
if a defendant has monopoly or market power in a relevant
2 Given our holdings here as to mootness and antitrust standing, we
have considered but see no need to reach the arguments raised by the State
of Illinois under the Eleventh Amendment and the Sherman Act state ac-
tion immunity doctrine.
Nos. 18-2725 & 18-3003 7
market. See generally, e.g., Leegin Creative Leather Products,
Inc. v. PSKS, Inc., 551 U.S. 877, 885–87 (2007) (summarizing
per se illegality and rule of reason).
Section 2 of the Sherman Act prohibits monopolization
and attempts to monopolize, but with narrow exceptions it al-
lows even firms with monopoly power to choose with whom
they deal and on what terms and conditions. Even monopo-
lists “are free to choose the parties with whom they will deal,
as well as the prices, terms, and conditions of that dealing.”
Pacific Bell Telephone Co. v. Linkline Communications, Inc., 555
U.S. 438, 448 (2009), citing United States v. Colgate & Co., 250
U.S. 300, 307 (1919).
There are “limited circumstances” under which a monop-
olist’s refusal to deal with a competitor will be illegal anticom-
petitive conduct. Id.; see generally Verizon Communications Inc.
v. Law Offices of Curtis V. Trinko, LLP, 540 U.S. 398 (2004); Aspen
Skiing Co. v. Aspen Highlands Skiing Corp., 472 U.S. 585 (1985);
Areeda & Hovenkamp, Antitrust Law ¶ 1800c5 (“Section 2 of
the Sherman Act reaches unilateral refusals to deal when the
refusals constitute monopolization … .”). To begin even to try
to fit this case into these relatively narrow exceptions, Sharif
would need to allege that Prime and/or Walgreens either have
or are dangerously likely to obtain monopoly power in a rel-
evant market.
So, in the absence of an alleged per se violation of Section
1, Sharif’s federal claims require it to identify a relevant prod-
uct and geographic market in which Prime and/or Walgreens
have or were dangerously likely to obtain monopoly power.
Even at the pleading stage, it is sufficiently clear that Sharif
cannot identify an appropriate geographic market where a
defendant had or threatened to have monopoly power.
8 Nos. 18-2725 & 18-3003
A “relevant market” under the Sherman Act is comprised
of the “commodities reasonably interchangeable by consum-
ers for the same purposes.” United States v. E.I. Du Pont de
Nemours & Co., 351 U.S. 377, 395 (1956). “A properly defined
market excludes other potential suppliers (1) whose product
is too different (product dimension) or too far away (geo-
graphic dimension) and (2) who are not likely to shift
promptly to offer defendant’s customers a suitably proximate
(in both product and geographic terms) alternative.” Areeda
& Hovenkamp, Antitrust Law ¶ 530a.
Geographic Market: Sharif has not plausibly alleged that ei-
ther Prime or Walgreens has or threatens to gain monopoly
power in a relevant geographic market. In its proposed sec-
ond amended complaint, Sharif identified three areas that
might serve as relevant geographic markets. In the section en-
titled “The Geographic Market,” Sharif alleges that the rele-
vant market in this case is “nation-wide for Prime and
Walgreens.” Sharif argues, quoting a Dow Jones wire article,
that Prime and Walgreens were joining forces to give
Walgreens “more muscle to compete against CVS Health’s in-
tegrated model that combines a retail pharmacy chain with a
large PBM [pharmacy benefits manager].” The proposed
complaint construes this news coverage as “a public admis-
sion by Defendants that through their partnership, and the
scheme Plaintiff alleges above where Prime terminates phar-
macies’ ability to sell prescription drugs, they will violate an-
titrust laws nation-wide to increase their market share of pre-
scription drugs.” Elsewhere in the proposed complaint, Sharif
asserts that “the five-block area” surrounding its pharmacy
and “the Chicago market area” are geographic regions in
which Prime is seeking to terminate the network participation
of possible Walgreens competitors.
Nos. 18-2725 & 18-3003 9
The United States as a whole and the Chicago metropoli-
tan area are plausible geographic markets for retail prescrip-
tion drug sales, but we see no plausible allegation that Prime
and/or Walgreens have or threaten to gain monopoly power
in a nationwide or metropolitan Chicago market for retail pre-
scription drug sales. Plaintiff’s assertion that the defendants
merely sought to increase their market shares does not come
close to satisfying the requirement of actual or threatened mo-
nopoly power. Antitrust law assumes that all competitors
seek to increase their respective market shares, especially by
business arrangements that will offer more attractive prod-
ucts and services to their customers.
Sharif’s assertion that the five-block radius around its lo-
cation is a relevant market is not plausible. The antitrust stat-
utes require a “pragmatic” and “factual” approach to defining
the geographic market. Brown Shoe Co. v. U.S., 370 U.S. 294,
336 (1962). The market must “correspond to the commercial
realities of the industry.” Id., quoted in Federal Trade Comm’n
v. Advocate Health Care Network, 841 F.3d 460, 468 (7th Cir.
2016) (quotations omitted). Where geographic convenience is
important to consumers, retail markets can be small, see
United States v. Philadelphia Nat’l Bank, 374 U.S. 321, 358 (1963),
but not this small. It defies belief to suggest that a hypothetical
monopolist retail pharmacy could raise its drug prices sub-
stantially without losing customers to competitors outside
that tiny area. See also 42nd Parallel North v. E Street Denim Co.,
286 F.3d 401, 406 (7th Cir. 2002) (rejecting as “absurdly small”
a proposed market for retail designer jeans and tee-shirts
comprising only the “central business district” of Highland
Park, Illinois).
10 Nos. 18-2725 & 18-3003
Product Market: Though we could affirm the judgment of
the district court solely on the basis of our geographic market
analysis, for two reasons, we also address plaintiffs’ failure to
plead a proper product market. First, though its discussion
was brief, the district court did address the issue, and its anal-
ysis would have been sufficient to support its decision. Sec-
ond, Prime Therapeutics has taken an aggressive position on
appeal: that “claiming a market of all ‘prescription drugs’ is
meaningless” and that “attempting to measure the inter-
changeability of countless unnamed ‘prescription drugs’ is an
impossible task.” Sharif has not pleaded facts sufficient to
support an inference that defendants have the requisite mar-
ket power within a viable product market for retail prescrip-
tion drugs. Sharif’s failure, however, does not mean that no
future antitrust plaintiff may be able to do so.
“The outer boundaries of a product market are deter-
mined by the reasonable interchangeability of use or the
cross-elasticity of demand between the product itself and sub-
stitutes for it.” Brown Shoe, 370 U.S. at 325. Sharif asserts that
the relevant product market is retail prescription drugs. De-
fendants contend that this product market is not plausible be-
cause more than 39,000 prescription drugs are sold in the
United States, and of course one prescription drug may be in-
terchangeable with only a few or perhaps no others. Contrary
to the defense arguments, however, and subject to appropri-
ate proof, we see no necessarily fatal flaw in treating that bun-
dle or cluster of prescription drugs that are typically sold in
brick-and-mortar retail pharmacies as a relevant product mar-
ket.
A cluster of products can comprise a relevant product
market “if the cluster is itself an object of consumer demand.”
Nos. 18-2725 & 18-3003 11
Advocate Health Care Network, 841 F.3d at 467 (quotations omit-
ted). As the Tenth Circuit noted in Green Country Food Market,
Inc. v. Bottling Group, LLC, 371 F.3d 1275, 1283–85 (10th Cir.
2004), the Supreme Court has recognized such “cluster” mar-
kets in banking, see United States v. Phillipsburg Nat’l Bank &
Trust Co., 399 U.S. 350, 360–61 (1970); United States v. Philadel-
phia Nat’l Bank, 374 U.S. 321, 356–57 (1963), and central-station
home security products, see United States v. Grinnell Corp., 384
U.S. 563, 572–73 (1966). The Court said in Grinnell Corp. that
“We see no barrier to combining in a single market a number
of different products or services where that combination re-
flects commercial realities.”
Health care services can be suitable subjects for such “clus-
ter” product markets. In Advocate Health Care Network, we rec-
ognized “inpatient general acute care services—specifically,
those services sold to commercial health plans and their mem-
bers” as a product market, including those “medical services
and procedures that require admission to a hospital, such as
abdominal surgeries, childbirth, treatment of serious infec-
tions, and some emergency care.” 841 F.3d at 468. See also,
e.g., Messner v. Northshore University HealthSystem, 669 F.3d
802 (7th Cir. 2012) (recognizing bundled hospital services as
product market); Indiana Grocery, Inc. v. Super Valu Stores, Inc.,
864 F.2d 1409, 1412 n.2 (7th Cir. 1989) (retail supermarkets de-
fined relevant product market); see generally Grinnell Corp.,
384 U.S. at 572–73 & n.6 (commercial realities showed that
central-station alarm companies needed to offer all or nearly
all types of property-protection services, making cluster of
services a relevant product market); Areeda & Hovenkamp,
¶ 565c (recognizing that surgical services might be appropri-
ate “cluster” product market, but criticizing other attempts to
establish cluster product markets).
12 Nos. 18-2725 & 18-3003
We close with a note about resolving these appeals on the
pleadings, with the federal claims dismissed with prejudice.
Since federal civil pleading standards changed so dramati-
cally in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and
Ashcroft v. Iqbal, 556 U.S. 662 (2009), it has been especially im-
portant for district courts to give leave freely to amend plead-
ings. E.g., Runnion v. Girl Scouts of Greater Chicago and North-
west Indiana, 786 F.3d 510, 519–20 (7th Cir. 2015) (collecting
cases). Uncertainty about application of the Twombly-Iqbal
standard means that a plaintiff whose original complaint has
been dismissed under Rule 12(b)(6) should ordinarily be
given at least one opportunity to try to amend its complaint
before the action itself is dismissed with prejudice. Id. In these
cases, however, it is apparent that the federal antitrust claims
are based on misunderstandings about foundational princi-
ples of antitrust law. It is evident from the proceedings in the
district courts and the arguments in plaintiffs’ appellate briefs
that the defects in these cases cannot be corrected, so that fur-
ther amendment would be futile. E.g., Runnion, 786 F.3d at
520; Airborne Beepers & Video, Inc. v. AT&T Mobility LLC, 499
F.3d 663, 666–67 (7th Cir. 2007). The district courts thus did
not err in dismissing these federal antitrust claims with prej-
udice.
* * * * *
The judgment of the district court in the J&S Pharmacy
case dismissing the Sherman Act claims of J&S customers
Scale, Thomas, and Brown with prejudice is AFFIRMED as to
plaintiffs’ damage claims; dismissal of those plaintiffs’ claims
for injunctive relief is AFFIRMED AS MODIFIED to dismiss
those claims as moot; and dismissal of those plaintiffs’ state-
law claims without prejudice is also AFFIRMED. In the Sharif
Nos. 18-2725 & 18-3003 13
Pharmacy case, the dismissal of the Sherman Act claims with
prejudice and dismissal of the state-law claims without prej-
udice are AFFIRMED.